THE DOCTRINE OF LEGITIMATE EXPECTATIONS IN KENYA.

GIW.*
INTRODUCTION.

An idea evolved in England that in a true democracy, citizens should be capable of making
government bodies and state actors honour promises made to the general public about
how discretionary public power will be used.1Therefore, English administrative law places
an importance on promises, practices, policies and laws that govern the way decisions are
made by state bodies vested with discretionary public power.2The doctrine of legitimate
expectation is a rule in English administrative law that says that: (1) representations made
to the public about how discretionary powers will be used ;(2) creates a legitimate
expectation in members of the general public that discretionary public powers will be used
in a particular way;(3) and members of the public may be entitled to legal remedy when
state actors deviate these representations on how discretionary public powers will be used.3
This doctrine has a long history in Kenyan administrative law, however, when the
Constitution came into force back in 2010,4there is a need to recalibrate its what it means
in light of Article 47 in Kenya’s Bill of Rights.

BACKGROUND.

As it was observed by Corbett CJ in a decided South African case, the term ‘legitimate
expectation’ was first used by Lord Denning in Schmidt.5 In that case, two students were
refused permission to remain in the UK. The UK government had made representations
to the effect that prior to an order to leave, people would be granted a hearing to plead
their case. The appellants complained that the government did not honour this promise
prior to an order being made for their removal. Lord Denning disagreed with them.In his
view, the representations were made to people who had entered the UK legally. Since the

*LLB CUEA
1
A Perry and F Ahmed, The Coherence of the Doctrine of Legitimate Expectations (2013):Available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2163255
2
R Clayton, Legitimate Expectations, Policy, and the Principle of Consistency (CLJ,2003)
3
R (Bibi) v London Borough of Newham [2001] EWCA Civ 607[Newham]: R v Secretary of State for Education, ex
parte. Begbie [2000] 1 WLR 1115[ ex parte Begbie]
4
Art 263 Constitution of Kenya 2010( COK)
5
Schmidt and Another v Secretary of State for Home Affairs [1969]1 All ER 904 (CA) [Schmidt ]at 909C and F.

1
appellants were in the UK illegally, they could not, therefore, have any legitimate
expectation of having a pre-deportation hearing.6

The earliest instance that the doctrine of legitimate expectations was imported into
Kenyan administrative law was the decision of David Oloo Onyango.7 The appellant had
been convicted of sedition.8The Prisons Act9entitled him to a remission if he had not
committed a prison offence and a hearing to challenge a denial of remission. 10However,
the then commissioner of prisons wrote to the officer-in-charge of the prison directing that
the appellant is deprived of their right to the remission of their sentence by Cap 90.During
their appeal, the appellant argued that denial of his right to a remission was illegal. The
court agreed because the principles of natural justice demand that where citizens
reasonably expect public decision makers to act fairly, these decision-makers cannot then
act unfairly. To the court, Cap 90 created a legitimate expectation that the appellant would
be entitled to a remission of their sentence and further, that prior to a decision being made
to deny remission, Cap 90 created the legitimate expectation that the appellant would be
entitled to a hearing where they can challenge that decision. The David Oloo Onyango case
also established that an ‘administrative act’ is a decision through the exercise of
discretionary power made by state actors that will affect the legal rights of individuals.

The doctrine became further entrenched and developed in Kenyan administrative law
through subsequent decisions.11For example, the relationship between illegal outcomes
and legitimate expectations was first tackled in ex Parte Aberdare Freight. In that case, the
applicant brought a judicial review application seeking, among other relief, an order of
mandamus to compel the respondent to release a consignment of sugar the respondent had
detained at the port.The respondent argued that they hadn’t made any representations to
the applicant that they would be treated as sugar importers. They were therefore entitled
to retain the consignment to make the applicant pay additional duties and compliance with

6
ibid
7
David Oloo Onyango v Attorney-General [1986] Civil Appeal No 152 of 1986[David Oloo Onyango]
8
S.57 Penal Code Chapter 63 Laws of Kenya (Cap 63)
9
Chapter 90 Laws of Kenya (Cap 90)
10
S46(1) Cap 90
11
R v KRA ex Parte Aberdare Freight Services Ltd and 2 Ors [2004] eKLR [Aberdare Freight]

2
sugar importation laws. The court refused the applicant’s legitimate expectation
arguments because the doctrine is defeated if enforcement would result in an illegality.12

EMERGING JURISPRUDENCE THE DOCTRINE OF LEGITIMATE

EXPECTATIONS AND THE CONSTITUTION OF KENYA 2010.

Prior to the 27th August 2010, the Schmidt doctrine was just a component of the principle
of natural justice in Kenyan administrative law that protects an individual’s right to a fair
administrative hearing prior to an administrative decision being made that may affect the
person’s legal rights.13The fact that the right to fair administrative actions was entrenched
in our Bill of Rights14 has led to a fundamental shift away from this traditional view of the
doctrine.15Under the new regime, the doctrine is constitutionalized and is no longer a
creature of the English law applicable because of the ‘general reception’ clause in our
Judicature Act.16Therefore, Article 47 in our horizontal Bill of Rights creates procedural
as well as substantive legitimate expectations in regards to the exercise of discretionary
power from both public and private sources.17

Subsequently in Juliet Angufa, 18

the court held that for a person to raise legitimate
expectation arguments respondent wielding discretionary powers, they must first illustrate
that: (1) there had been representations made to them or the general public ;(2) the
representations were clear and unconditional;(3) the applicant’s expectation on how
discretionary power is used in administrative acts is reasonable ;(4) the representor had
authority to do so;(5) so that enforcement will not result in illegal outcomes. 19In Outdoor
Advertising20 ,it was held that in light of the fact that judicial review is a remedy in Bill of

12
Aberdare Freight [2004] : R v KNEC ex parte CHARLES OBARA and 8 Ors[2012]eKLR : FRANCIS
CHACHU GANYA and 4 Ors v AG and Anor[2012]eKLR: R v HEAD TEACHER,THE KENYA HIGH
SCHOOL and Anor ex Parte SMY [2010]eKLR
13
Geothermal Development Company v AG and 3 Ors [2013] KeHC Petition 352 of 2012:David Oloo Onyango
[1987]: Aberdare Freight [2004]
14
Art 47 COK
15
CCK & 5 others v Royal Media Services & 5 others [2014] eKLR[CCK] per DCJ Rawal
16
S.3(1)(c) Chapter 8 Laws of Kenya (Cap 8)
17
CCK [2014] per Rawal DCJ: Kevin Mwiti and Ors v KSL and 2 Ors [2015] eKLR: R v NGO Cordination
Board and Anr ex Parte Trans Gender Education and Advocacy and 3 Ors [2014]eKLR: Bowry v EACC
[2012]eKLR
18
R v Pharmacy and Poisons Board and 2 Ors ex Parte Julliet Lihemo Agufa [2014]eKLR[Julliet Angufa]
19
Juliet Angufa [2014] per Korir J
20
R v County Govt of Mombasa ex Parte Outdoor Advertising Ass. of Kenya [2014] eKLR[Outdoor Advertising]

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Rights litigation, if it has been established that legitimate expectations had been created
by representations made to an applicant on how discretionary powers will be and judicial
review remedies are unsatisfactory in the opinion of the court. The judicial review
application will be deemed to have been brought under Article 22 of the Constitution and
damages will be awarded for the breach.21

Justice Mwicigi in a decided case22 set the precedent that a promise made by a public body
or official may give rise to legitimate expectations in a representee if the latter acts believing
the promise will be fulfilled.23Similarly, Justice Odunga in a decided case24allowed orders
of certiorari to quash the respondent’s decision to refuse recognition of the applicant’s
academic qualifications because the respondent had given a promise to the applicant that
they will. In another decided case, it was held that management practices and customs of
employers are capable of creating legitimate expectations in their employees that ‘hardens
into an implied term in the employment contract.’25 Justice Okiyo in a decided case26 held
that company policies adduce evidence that shows a company policy was ‘consistent and
persistent or that it was reasonable, certain and notorious’ for it to be actionable in court.27

CONCLUSIONS.

Article 47 of Kenya’s supreme law constitutionalizes substantive and procedural

legitimate expectations. The horizontal nature of the Bill of Rights means that this doctrine
can be used to challenge the way public and private actors exercise discretionary powers
in Kenya.

21
Outdoor Advertising [2014] per Murithii J
22
JOEL NYABUTO OMWENGA & 2 OTHERS V INDEPENDENT ELECTORAL AND BOUNDARIES COMMISSION &
ANOTHER [2013]eKLR
23
ibid
24
R v COMMISSION FOR HIGHER EDUCATION EX-PARTE PETER SHOITA SHITANDA[2013] eKLR
25
Wayua Musau v Copy Cat Ltd [2013]eKLR[Copy Cat ]per Okiyo J
26
KCAWU v Bamburi Cement Ltd [2012] eKLR [Bamburi Cement]
27
ibid